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August 28, 2013

FTC Asked to Teach Marketers of Mobile Apps for Babies a Lesson

Thanks to a widening
variety of mobile applications targeted at babies and children, parents can increasingly
rely on their mobile devices to help entertain their little ones. Two
complaints filed with the Federal Trade Commission (FTC) on August 7, 2013,
however, request an investigation into claims that particular apps designed for
babies and children are educational. The claims were filed by
Boston-based advocacy group Campaign for a Commercial-Free Childhood (CCFC).

One complaint asks the FTC to investigate claims by Fisher-Price regarding the
educational benefits of its series of “Laugh & Learn Apptivity” apps,
offered for iPhone and iPod devices. According to the complaint,
Fisher-Price claims that these apps teach babies their first words, letters,
numbers, counting, shapes and colors. The apps are sold under the
“Education” category of Apple’s App Store. The complaint alleges that
these marketing statements are unsubstantiated and violate Section 5 of the
Federal Trade Commission Act. In a statement to the New York Times, the senior director of child research at Fisher-Price, Kathleen
Alfano, said that the company conducts extensive research “to create
appropriate toys for the ways children play, discover and grow” and that it had
“appropriately extended these well-researched play patterns into the digital
space.”

The other complaint asks the FTC to investigate similar claims by Slovakian company
Open Solutions about its mobile applications targeted toward babies. The
complaint regarding Open Solutions was withdrawn on August 14, 2013, following substantial changes to the company’s marketing of its mobile apps. Among other
things, Open Solutions removed statements from its marketing materials that its
apps would “entertain and educate your baby,” that they were “designed by
parents for young babies,” and that they would help babies “practice motor
skills, shapes, logic and precision.”
Open Solutions also removed the statement “we love to build the best
learning apps for your kids” and all statements that said that a particular app
was “for babies” of a certain age (for example, “0-6 years” or “1-7 years”).

The complaints allege a
lack of research by either the companies themselves or by third parties
supporting the companies’ claims that mobile apps for touch-screen devices have
any educational benefits to children. The CCFC argues in its complaints
that while no research “definitively shows the harms of educational apps on
very young children,” existing research indicates that screen time for very
young children may do more harm than good when it comes to early learning and
development. The CCFC points to the American Academy of Pediatrics’ recommendation
that children under two years of age should have no screen time at all. The complaints contend that the educational
claims about the mobile apps are likely to mislead reasonable parents. In
particular, with regard to Fisher-Price, the complaint alleges that the
educational claims in combination with “Fisher-Price’s reputation as a leader
in baby toys” imply that the claims about educational value are substantiated.

The FTC has previously
considered advertising claims about the educational value of certain toys and
products for children. For example, in
August of 2012, the FTC filed a complaint against Your Baby Can, LLC and its CEO over the “Your Baby Can Read!” program, which
the company claimed could teach children as young as nine months old how to
read through the use of flash cards, videos and pop-up books. The complaint also charged the product
creator with making deceptive product endorsements. These charges were eventually settled
with the FTC.

The FTC has recently
provided guidance to mobile app developers to help them comply with the FTC’s
policies on truthful advertising and privacy. In April of this year, the
FTC published a guide entitled Marketing Your Mobile App: Get It Right From
the Start, which we blogged about here, and accompanying video, discussed here. The guide and the video focus on the
need to make truthful statements, disclose key information, and ensure that
objective claims are supported by “competent and reliable evidence.” The
FTC’s 1984 Policy Statement Regarding Advertising Substantiation provides more
detail regarding the FTC’s requirement “that advertisers and ad agencies have a
reasonable basis for advertising claims before they are disseminated.”
Although it is not clear whether the FTC will pursue the complaint
against Fisher Price, these recent complaints are a reminder that advertisers
should take care to ensure that they have competent and reliable evidence to
support any objective claims made about their mobile apps.